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Wednesday, August 10, 2016

Can the estate lawyer make the executors apply for probate if they don't want to?

Can the estate lawyer make the executors go through probate if they don't want to, or without explaining why probate is necessary? A reader recently wrote to me about a situation in which this seems to be happening. Read on to see her question and my comments:

"My brother passed away. I was able to get a lawyer to come to the hospital and help him do up his will. They got the will done up and now the lawyer has made my parents go to probate and is setting up the advertisement in the paper....he told us it HAD to be done but even the bank does not understand why he is making them do this. My brother had no equity, land, etc etc. My parents are aware of his debts and had planned on paying his debts and trying to fulfill his wishes. There is not enough money to pay everything, not even the small bequest he wanted his nephews to have.  My parents are essentially poor. They do not have money to have to pay the lawyer and now the advertisement. We just want to know if this lawyer is taking advantage of us, if there is any way to fight this if it wasn't necessary seeing as how the lawyer did not disclose any other options or the fact that because his assets were small that they may not have had to probate."

First thing your parents have to do is fire the lawyer. Why? Because they have no confidence in his advice and the working relationship is non-existent.

The fact that the lawyer is the one who drafted the will does not give him any sort of right to be the lawyer who takes the will to probate. Your parents can hire any lawyer they want. I often run into people who believe they have to use the same lawyer, but that's incorrect.

To me, it's problematic when I hear that the lawyer "made" your parents apply for probate. Since they are the clients and the lawyer works for them, he can't actually make them do anything. But I know what you mean, because at the end of your question you state that the lawyer did not disclose any other options for going forward. When a lawyer is doing a proper job, he or she sets out all the reasonable options, then makes a recommendation about which one to follow.

For any person who hasn't spent much time sitting across from a lawyer getting legal advice, the process and the situation can be intimidating. The lawyer can be intimidating, and so can all of the legalese language you suddenly have to deal with. Not everyone feels prepared to question the lawyer's advice. In a situation such as  yours where your parents are also grieving for their son, they are probably even less inclined to argue about what is to be done. My heart goes out to them, as I can imagine they are finding this immensely stressful.

Reading the facts as  you have presented them, it seems to me that the lawyer gave you bad advice and as a result, what little money there is in the estate is being used up in probate and legal fees. I cannot see why probate was necessary if your brother did not own land and had only small assets. I realize, however, that I don't know all the facts so there is always a chance that there was a valid legal reason for taking the will to probate. If there was, the lawyer should have made that clear to your parents so that they understand the necessity.

Advertising for creditors is not mandatory. And when it is done, it's the executor's call, not the lawyer's, as the executor is the one taking any risk of debts popping up later. Again, the lawyer cannot actually "make" your parents do this, though apparently he has made them feel that he can.

It's always a tough call when you hear about someone who is so upset with his or her lawyer. I know from experience that not all clients understand everything I tell them the first time, and sometimes not even the second time. Legal information is foreign to many people. However, it's my practice to follow up meetings like that with a letter confirming what I've said so that they have the explanation at hand when they want it. It appears that the lawyer your parents worked with could have done a better job of communicating with your parents. Sometimes it's a matter of personal style, and in other cases it's simply a matter of a lawyer not taking the time to fully advise the clients.

You do not have to "fight" this, The lawyer works for your parents. As I said above, consider firing the lawyer and finding someone else with whom your parents can establish a solid working relationship based on trust and mutual respect. It may sound like a tall order, but I assure you that the majority of lawyers out there care about their clients and do everything they can to make clients feel comfortable and valued. No clients should leave their lawyer's office feeling bullied or frightened by the lawyer! Even if the lawyer has bad news, it should be explained in a way that the clients can understand.

When you find that second lawyer, you can get a second opinion on whether probate was actually needed. If at all possible, look for someone with a lot of experience with estates. That person will have all the facts and paperwork at hand, which I don't, and will be able to explain the options. If you believe that the first lawyer gave bad advice and needlessly cost the estate money it could not afford to lose, you may wish to make a complaint to the provincial Law Society about him.

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